The coastal area of the west coast of Tasmania, within takayna / the Tarkine, is one of the longest inhabited in Tasmania, and an area where Tasmanian Aboriginal people(s) have a continuing spiritual relationship with the land.
This country is a cultural heritage landscape, rich in evidence of the continuous occupation of Tasmanian Aboriginal people(s), including hut depressions, high density midden deposits, petroglyphs, and known burial sites.
EDO Tasmania represented the Tasmanian Aboriginal Centre (TAC) in legal action taken in 2014-2016 to prevent the Tasmanian government from re-opening of 4WD tracks in the National Heritage listed Western Tasmania Aboriginal Cultural Landscape (WTACL) within takayna / the Tarkine.
4WD tracks in this area were closed by the Tasmanian government in 2012 after extensive community consultation because of unacceptable impacts on Aboriginal cultural heritage.
Part of the area was subsequently listed as a national heritage place, the Western Tasmania Aboriginal Cultural Landscape, because of the significance of its Aboriginal cultural heritage values.
However, in 2014, a newly elected Tasmanian Liberal government announced that the tracks would be re-opened. Despite the national heritage listing, no approval was sought under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and no assessment of the impacts on the cultural values of this area to Tasmanian Aboriginal people(s).
EDO Tasmania successfully took legal proceedings on behalf of TAC to prevent the re-opening of the 4WD tracks. As a consequence of the legal action, the Tasmanian government referred the proposal for assessment under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The Federal Minister’s delegate decided on 16 October 2017 that the reopening of the tracks is a controlled action. The Tasmanian government now cannot reopen the tracks without EPBC Act approval.
Represented by the EDO, the TAC took a series of legal actions to prevent the re-opening of the takayna / Tarkine 4WD tracks.
Interim Injunction granted
On 23 December 2014, EDO Tasmania appeared urgently in the Federal Court to seek an interim injunction preventing the Tasmanian government from authorising any vehicle use of the tracks until the Federal Court determines the application.
This action was successful, the Court finding on the balance of probabilities that there was a reasonable case to be heard. The government was prevented from reopening the tracks before the 2014/2015 summer season.
Evidence about impacts on country
The Federal Court heard the application in October 2015, the EDO representing the TAC.
The TAC led evidence about the significance of the area, including evidence from Tasmanian Aboriginal people, and about the consequences of allowing recreational vehicles into the area. We made submissions about what this evidence meant and why the reopening breached the EPBC Act.
The State government did not call any evidence. Instead, its case focussed on two issues:
- that the decision to open the tracks (rather than the actual use of the tracks by individual drivers) was not an “action” under the EPBC Act; and
- that the “Indigenous heritage values” (defined under the EPBC Act) protected by the heritage listing were limited to physical hut depressions, rather than broader landscape values.
On 1 March 2016, Justice Mortimer made orders declaring that the opening of the tracks was a “controlled action” and that it would have a significant impact not only on identified heritage sites but on the broad values of the Western Tasmania Aboriginal Cultural Landscape.
For the full decision, click here.
The Tasmanian Government appealed against this decision and the Commonwealth Government joined the appeal. EDO Tasmania again appeared for the TAC.
Together, the State and Commonwealth governments argued that the decision to open the 4WD tracks does not require approval under the EPBC Act. They asked the Full Federal Court to find that Justice Mortimer’s interpretation of “Indigenous heritage values” was too broad and should be confined to identified hut depressions and seal hides. They alleged that if “Indigenous heritage values” of the WTACL were confined in that way, the impacts of 4WD on those values will not be significant.
The Full Court handed down its decision on 16 September 2016, upholding that the EPBC Act applied to the reopening of the tracks. The Full Court found that the works required to open the tracks were “actions” within the meaning of the EPBC Act, and disagreed with the governments’ argument that no approval was required.
The Full Court took a narrower view on the meaning of “Indigenous heritage values” under the EBPC Act, finding it was limited to the values included in the WTACL listing statement (rather than the broader cultural landscape). Because Justice Mortimer had the evidence before her, the Court ordered that the case be sent back to Justice Mortimer to determine whether opening the tracks would impact on Indigenous heritage values as defined by the Full Court.
Following this decision, the Tasmanian Government committed to consulting with the Aboriginal community and 4WD track users about planned works, and to referring the proposal to the Federal Minister for EPBC Act approval. This has displaced the need for the Court to determine the remaining question.
On 8 September 2017, the Tasmanian Government referred the works required to reopen the tracks to the Commonwealth under the EPBC Act. The Environment Minister’s delegate found that the action was a controlled action, and determined that the proposed works must be assessed by way of Public Environment Report (PER).
No approval can be granted until after a PER has been submitted, public notice given and an assessment by the Federal Environment Department.
The terms of reference for the Public Environment Report were published on 13 March 2018. It is now the responsibility of the Tasmanian Government to prepare a PER in accordance with the terms of reference, and release that for public comment. There is no timeframe for that to occur.
Our clients continue to urge the Tasmanian government to abandon the proposal altogether, particularly given the Government’s commitments to “resetting the relationship” with Tasmania’s Aboriginal community.
Unlawful use of tracks
Unless approved under the EPBC Act, the tracks will remain closed under Tasmanian law. However, there are many reports of 4WDs and off-road vehicles continuing to use the tracks.
TAC and environment groups continue to call on the Minister to take strong action to prevent unlawful use of the tracks.
EDO recognises the traditional owners and custodians of the land, seas and rivers of Australia. We pay our respects to Aboriginal and Torres Strait Islander elders past and present, and aspire to learn from traditional knowledge and customs so that, together, we can protect our environment and cultural heritage through law.